612 September 2, 2026 No. 823
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Hector Gabriel ZABALA
and Kerry Dawn Cabrera,
Plaintiffs-Appellants,
v.
CITY OF LINCOLN CITY,
representing and providing coverage for the
Lincoln City Police Department,
Defendant-Respondent.
Lincoln County Circuit Court
24CV35064, 24CV35057; A186393 (Control), A187214
Marcia L. Buckley, Judge.
Submitted July 23, 2026.
Hannah K. Hoffman and Angeli & Calfo LLC filed the
opening brief for appellants. On the reply brief was Peter D. Hawkes and Angeli & Calfo LLC.
Amanda L. Reilly, Keegan C. Murphy, and Kenneth S.
Montoya filed the brief for respondent.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
O’CONNOR, J.
Affirmed.
Cite as 352 Or App 612 (2026) 613
O’CONNOR, J.
Hector Zabala and Kerry Cabrera alleged in civil
complaints that they were arrested by a Lincoln City police officer during a traffic stop outside of their home on July 18, 2022. The district attorney charged them with crimes based
on the arrests but ultimately moved the trial court to dismiss the charges. The court granted the motions and dismissed
the charges. Zabala and Cabrera, pro se, filed separate complaints against the City of Lincoln City (city) alleging that they were falsely arrested and assaulted by the police officer. The complaints and summonses were filed and served
outside of the statute of limitations. The city moved to dismiss both cases on that ground. Cabrera responded that
the statute of limitations was tolled under ORS 12.160(3)
because she suffers from a disabling mental condition that
made her unable to comprehend her rights. Zabala made the
same argument, albeit later in the litigation. The trial court granted the city’s motions and dismissed both cases.
In this consolidated appeal, plaintiffs appeal from
the judgments dismissing their complaints with prejudice.
Plaintiffs filed a single opening brief in which they raise two assignments of error. In a combined argument, they
argue that the trial court erred when it granted defendant’s motions to dismiss under ORCP 21 A(1)(i) for failure to timely commence their actions, and that the trial court erred when it held that ORS 12.160(3) did not toll their claims. We conclude that, considering the four corners of the complaints, the actions were not timely filed and plaintiffs failed to adequately allege facts that would establish tolling under ORS 12.160(3). Accordingly, we affirm.
In reviewing an order granting dismissal under
ORCP 21 A(1)(i), “we assume the truth of all allegations
in the [operative] complaint and give the plaintiff, as the nonmoving party, the benefit of all favorable inferences that could be drawn from those allegations.” Kelly v. Lessner, 224 Or App 31, 33, 197 P3d 52 (2008). We review a trial court’s decision to dismiss a complaint under ORCP 21 A(1) for legal error. Bernards v. Summit Real Estate Management, Inc.,
229 Or App 357, 371, 213 P3d 1 (2009).
614 Zabala v. City of Lincoln City
Plaintiffs filed their complaints pro se. The complaints alleged that they were both falsely arrested and
assaulted by a Lincoln City police officer on July 18, 2022. On July 18, 2024, plaintiffs electronically submitted their complaints to the trial court, but the court rejected the filings the following day because plaintiffs had not paid the
filing fees. On July 22, 2024, plaintiffs again electronically submitted their complaints, and the court accepted the filings on July 23, 2024. Plaintiffs served defendant with the complaints and summonses on October 21, 2024.
Defendant moved to dismiss the complaints pursuant to ORCP 21 A(1)(i). Defendant argued that plaintiffs
had not commenced their actions within the two-year statute of limitations under ORS 12.110(1). In response, plaintiffs appeared to accept that they filed their complaints outside the limitation period. But, they argued, the limitations period had been tolled under ORS 12.160(3), which operates
to toll a statute of limitations when a plaintiff suffers from “a disabling mental condition that bars the person from comprehending rights that the person is otherwise bound to know[.]”. Plaintiffs also submitted evidence in support of their assertion that they suffered from disabling mental conditions.
The trial court held hearings on the motions. It
granted defendant’s motions in separate letter opinions. In plaintiff Zabala’s case, the trial court determined that the complaint established that the action was commenced outside the two-year statute of limitations. The court did not consider the evidence submitted by Zabala in response to
the motion to dismiss his case. In plaintiff Cabrera’s case, the trial court determined that the complaint was filed
outside the statute of limitations. However, the court also noted that Cabrera had raised tolling under ORS 12.160(3),
considered the evidence submitted by Cabrera, and found
that even though Cabrera had “certain mental conditions,”
those conditions did not “bar[ ] her from comprehending her rights.” It entered judgments dismissing the complaints
with prejudice. Plaintiffs filed this appeal.
Plaintiffs argue on appeal that the trial court erred
in granting defendant’s motions to dismiss because there was a question of fact as to whether plaintiffs each suffered from a Cite as 352 Or App 612 (2026) 615
“disabling mental condition that bars the person from comprehending rights that the person is otherwise bound to know”
under ORS 12.160(3). Plaintiffs both acknowledge in their
combined brief that the trial court could properly consider only the four corners of their complaints, not the additional evidence they submitted, when deciding defendant’s motion
to dismiss under ORCP 21 A(1)(i). Zabala argues that the
trial court correctly refused to consider his evidence but erred because fact finding was required to determine whether ORS
12.160(3) applies. Cabrera argues that the trial court erred when it considered her additional evidence and then made fact findings to determine that ORS 12.160(3) did not apply.
Defendant argues that the trial court did not err in
granting the motions because the pleadings showed on their
face that plaintiffs did not commence their actions within
the time limited by statute. In their reply brief, plaintiffs further argue that neither of the complaints demonstrated
that their claims were not timely because both complaints
referred to plaintiffs’ respective mental health and capacity issues, giving rise to a reasonable inference that ORS
12.160(3) may toll their claims. In plaintiffs’ view, their complaints were sufficient to survive the motions to dismiss and the trial court should have permitted a factfinder to determine whether, in fact, ORS 12.160(3) tolled their claims.
The statute of limitations for plaintiffs’ false arrest
and assault claims is two years. ORS 12.110(1) provides that
“[a]n action for assault, battery, false imprisonment, or
for any injury to the person or rights of another, not arising
on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in
an action at law based upon fraud or deceit, the limitation
shall be deemed to commence only from the discovery of the
fraud or deceit.”
An action commences for the purposes of the statute of
limitations “when the complaint is filed, and the summons
served on the defendant[.]” ORS 12.020(1). Here, there is no dispute that the summonses were served on defendant more
than two years after July 18, 2022, the date that plaintiffs alleged the police officer falsely imprisoned and assaulted them.
616 Zabala v. City of Lincoln City
ORCP 21 A(1) provides for defenses that may be
made by a motion to dismiss, including the defense “that
the pleading shows that the action has not been commenced
within the time limited by statute” under ORCP 21 A(1)(i).
ORCP 21 A(1)(i) “permits a defendant to file a motion raising a limitations defense only when a plaintiff’s ‘pleading shows’ that the action is untimely. At this early stage in a case, the sole reference by which a limitations defense is evaluated
is the plaintiff’s complaint.” Kastle v. Salem Hospital, 284 Or App 342, 348, 392 P3d 374 (2017). When the face of the
complaint establishes that the claim was filed outside the
statute of limitations, then the plaintiff must allege in the complaint some grounds for tolling (or some other applicable exception to the limitation period). See Hewitt v. Thomas, 210 Or App 273, 276, 310 P2d (1957) (distilling case law establishing that when it “appear[s] on the face of the complaint that the statute had run * * * it [is] therefore incumbent on [the] plaintiff to plead grounds for tolling the statute”); see also Kastle, 284 Or App at 349 (describing that statement
from Hewitt). A trial court cannot consider “affidavits and other materials outside the complaint.” Roberts v. Drew, 105 Or App 251, 255, 804 P2d 503 (1991). Consistent with those
rules, in Roberts, we examined only the face of the complaint to determine whether the plaintiff had adequately pleaded
facts that could establish tolling under former ORS 12.160(2) (1991), renumbered as ORS 12.160(3) (2007). Id. at 254-55.1
ORS 12.160(3) is a tolling statute that provides
that if “at the time the cause of action accrues the person has a disabling mental condition that bars the person from
comprehending rights that the person is otherwise bound
to know, the statute of limitation for commencing the
action is tolled for so long as the person” has that disabling
1
We note that the trial court did consider materials outside the complaint submitted by Cabrera. In its letter opinion it found, apparently as fact, that Cabrera’s “mental conditions” did not satisfy ORS 12.160(3). That was error. On appeal, Cabrera recognizes that we only evaluate the face of the complaint to determine whether it establishes that the action was not commenced within the two-year statute of limitations. She argues that the allegations in her complaint adequately pleaded facts that, when inferences are drawn in her favor, create a factual question about whether ORS 12.160(3) applies. We disagree with Cabrera on that point as we explain in the body of this opinion. Thus, the trial court’s error in considering evidence outside of the four corners of the complaints provided no basis for reversal in light of the arguments Cabrera presents on appeal. Cite as 352 Or App 612 (2026) 617
mental condition. “Critically, to toll the limitations period, a plaintiff’s mental condition ‘must have been such as to
have actually barred her from knowing that [the defendant]
had harmed her.’ ” Thompson v. Portland Adventist Medical
Center, 309 Or App 118, 123, 482 P3d 805 (2021) (quoting
Gaspar v. Village Missions, 154 Or App 286, 292, 961 P2d
286 (1998) (emphasis in Gaspar; brackets in Thompson)).
When a plaintiff adequately pleads a disabling mental condition that could toll the limitations period, whether the
condition “was severe enough to amount to such a bar is a
question of fact.” Thompson, 309 Or App at 123.
We conclude that in this case the complaints, on
their face, establish that the actions were commenced outside the two-year statute of limitations. Plaintiffs alleged in their complaints that they were injured on July 18, 2022. Thus, under ORS 12.110(1), the action was required to have
been commenced on or before July 17, 2024. However, plaintiffs did not commence the actions until October 21, 2024,
when they served the complaints and summonses on defendant.2 Plaintiffs’ claims are thus time-barred unless the
complaints adequately pleaded grounds for tolling the statute of limitations.
We conclude that plaintiffs did not adequately plead
grounds for tolling under ORS 12.160(3). Plaintiff Zabala
alleged that the unlawful arrest “has caused an exacerbation of mental health issues and anguish that has led to a
detriment in Zabala’s ability to conduct business and provide income.” Zabala also alleged in a section of the complaint dedicated to damages that defendant’s actions caused him “panic disorder and severe mental health decline” and
“emotional inability to conduct business (purchase sundries, teach music, move, string, and tune pianos, etc. * * *) * * *.” Plaintiff Cabrera alleged that the officers’ unlawful actions caused her “bodily injuries (medically supported) as well as mental and emotional distress, anguish, and post trauma
anxiety.” Cabrera alleged she was undergoing treatment
2
The date of service, rather than the date of filing, was the date of commencement because more than 60 days elapsed between filing and service. See ORS 12.020(2) (providing for relation back when “the first publication of summons or other service in an action occurs before the expiration of 60 days after” the filing date).
618 Zabala v. City of Lincoln City
for the injuries and that she “hasn’t been able to resume
a normal life with the abundance of physical and mental
limitations.”
The complaints do not allege that “at the time the
cause[s] of action accrue[d] the person has a disabling mental condition that bars the person from comprehending rights
that the person is otherwise bound to know[.]” We recognize that plaintiffs were not required to allege tolling using the precise words of ORS 12.160(3). Even assuming for the sake
of argument that allegations establish a “disabling condition” under ORS 12.106(3), the complaints do not allege any facts that support an inference that the condition barred
the plaintiffs from comprehending their rights, as required under ORS 12.160(3). That is, even liberally construed, the complaints do not allege facts that would support a determination that plaintiffs’ mental health conditions barred
them from understanding at the time the causes of action
accrued that defendant had injured them or barred them
from understanding that they could sue defendant to seek
remedies for their injuries.
Plaintiffs argue that their allegations gave rise to
a factual question about whether their mental health conditions tolled the statute of limitations, relying on Roberts. In Roberts, the plaintiff was a conservator for her incapacitated daughter. The plaintiff sued the defendant “for intentional torts in the nature of sexual abuse.” 105 Or App at 253. The plaintiff alleged in the operative pleading that her daughter was “severely mentally retarded” and that the abuse took
place for over two years until it stopped “when it was discovered by a responsible adult.” Id. The statute of limitations was two years, and the action was filed more than two years after the “responsible adult” discovered the abuse. Id. The defendant moved to dismiss, raising the statute of limitations. We concluded that the allegations in the complaint
raised questions of fact about “[t]he extent of retardation and the nature of its disabling effects * * *.” Id. at 255. Thus, the complaint did not “show on its face that the action [was] time-barred[.]” Id.
The allegations in Roberts permitted the inference
that the plaintiff’s daughter’s “severe retardation” was a
Cite as 352 Or App 612 (2026) 619
disabling condition that prevented her from understanding
that the defendant had harmed her or that she had redress
for the harm. The alleged severity of the condition, the fact that the plaintiff was her daughter’s conservator, and that it took a “responsible adult” to discover and stop the abuse created a factual question about whether ORS 12.160(3)
applied. Here, by contrast, the complaints do not allege facts that permit an inference that plaintiffs’ mental health conditions prevented them from understanding that defendant
had harmed them or that they had redress for the harm, as
we described above.
The trial court did not err in granting defendant’s
motion to dismiss plaintiffs’ complaints because the complaints showed that the actions were not timely and plaintiffs failed to plead grounds for tolling the statute of limitations.
Affirmed.